Pro Diligo Lex

In its defence to the copyright action by an angry horde of movie producers, iiNet has argued that because BitTorrent files are broken up into small chunks and the small chunks transferred separately, customers do not transfer "substantial portions" of the files and so they do not breach copyright.

The ACMA last week took action against the popular Whirlpool discussion site for posting a link to a web page on the ACMA's list of banned web sites. The banned web site was, apparently, an anti-abortion web site. An edited version of the offending post shows that in the context the post (and the use of the link) clearly amounts to political expression. Furthermore, the link was apparently to a web site containing political expression. It is very likely that the ACMA action breaches the implied right to freedom of political expression in the Constitution.

A number of commentators have suggested that In Re Bilski is fatal to the Microsoft suit against TomTom. Each of the three patents applying to Linux is drafted so as to tie them to use in a computer. On page 24 of the lead judgement from In Re Bilski is the following passage:

... issues specific to the machine implementation part of the test are not before us today. We leave to future cases the elaboration of the precise contours of machine implementation, as well as answers to particular questions, such as whether or when recitation of a computer suffices to tie a process claim to a particular machine.

The Microsoft patent suit against TomTom has attracted some attention in the linux development community because the last three of the 8 patents being used by Microsoft involve features implemented in Linux. Two of those patents are the infamous FAT patents on long file names in a FAT file system. The third is a patent on a file system layer designed for use on flash memory.

The first thing to note is that Microsoft does not appear to have obtained patents for these features in Australia at all, so businesses operating only in Australia are unlikely to face problems with these patents

In a decision made last week, the Federal Court has found that the convergence between computer products and consumer electronics products makes it difficult to draw fine lines between the categories. Pioneer Computers Australia Pty Ltd v Pioneer KK [2009] FCA 134 involved a dispute between an computer manufacturer established in the mid 1990s and an audio equipment manufacturer established in the 1970s.

In an effort to prevent others from using variations on the "Pod" theme for naming portable music and video players, Apple filed an application for a trade mark for "POD" in 2004. In January the trade marks office rejected the application against the opposition of a music electronics vendor called "Line 6", which makes a line of products caled "POD" and has had a registered trade mark since 1999.

Software vendors have a variety of attitudes to open source libraries. Some will use open source libraries without looking at the terms of the open source licence, and some will not use any for fear that the open source library will contaminate their own intellectual property. Rarely a software company will evaluate software licences for individual libraries to determine whether they can, and are prepared to, meet the requirements for using the library.

A law suit launched against iiNet in November by a horde of movie industry plaintiffs seeks to make iiNet liable for breaches of copyright by their subscribers. The alleged liability is based a provision of the Copyright Act 1968 (Cth) that makes it a breach of copyright to authorise another person to do something that is a breach of copyright.

A recent decision of the Federal Court creates a significant challenge for e-commerce businesses selecting a trade mark. In Bing! Software Pty Ltd v Bing Technologies Pty Limited (No 1) [2008] FCA 1760, the court held that the trade marks were deceptively similar, even though the businesses were completely different, because:

1. the plaintiff and defendant had similar sounding trade marks;
2. their businesses both involved the use of computers;
3. there was evidence of some people actually having been confused; and
4. an expert witness gave evidence that the trade marks were likely to create confusion.

Drafting contracts without legal assistance, or with the wrong legal assistance, may lead to disaster down the track. Many professionals (and this extends outside the legal and information technology fields) believe they can save money by drafting their own contracts. Almost invariably these contracts do not say what the professional meant to say, and miss important aspects of the transaction. The result can be one or more legal disputes later on that cost far more than the cost of getting the contract right in the first place.